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oe i oo 8 le ee —————— @ IN THE SUPREME COURT OF THE VIRGIN ISLANDS PEOPLE OF THE VIRGIN ISLANDS, ) Petitioner, ) )S.Cc. Civ. Apo. No. 2007-612 v } )Re: Super. crim, Wo.:476/2006 ELBE BRAITHWAITE Respondent. JUBGE HCONCRABLE LEON A. KENDALL, Nominal Respondent ———— NOTICE OF ENTRY OF JUDGMENT/ORDER TO Associate Justices 4&1] Judges of the Superior Court Brenda C. Scales, Esquire Assistant Attorney General (Counsel for the Feritiorner} Robert ~ L King, Esquire (Counsel for Nominal Respondent) Samuel Joseph, Esquire Assistant Public Defender (Counsel for Respondent) Supreme Court Law Clarks Venetia Velazquez, Esquire Clerk of the Supreme Court Please take notice that on July 4, 2007 an) MEMORANDUM OPINION AND ORDER dated July 4, 2037, were entered by the Clerk in tne adove- entitled matter. “ } _—S ‘TE Dated: July 4, 2007 VELA seem PAF re a < Vy On G —<, Benuty Lv ay Res J Be IN THE SUPREME COURT OF THE VIRGIN ISLANDS ) IN RE PEOPLE OF THE VIRGIN ISLANDS, _ ) Petitioner, ) S.Ct. Civ. App. No. 2007/012 ) Re: Super.Ct. Crim. No. 479/2006 concerning ) ) HON. LEON A. KENDALL, JUDGE OF THE) SUPERIOR COURT OF THE VIRGIN ) ISLANDS, ) Nominal Respondent, ) ) and ) ) ELBE BRATHWAITE, ) Respondent. ) ) _) On Appeal trom the Superior Court of the Virgin Islands Argued May 14, 2007 Filed July 6, 2007 BEFORE: Rhys S. Hodge, Chief Justice; Maria M. Cabret. Associate Justice; Ive Arlington Swan, Associate Justice. APPEARANCES: Brenda C. Scales, Esq. USV1 Department of Justice St. Thomas, USVI Attorney for Petitioner, Robert T.. King. Esq. Law Offices of Robert L. King St. Thomas. USVI Attorney for Nominal Respondent Leon A, Kendall. Judge. Inve People of the Virgin Islands S.Ct. Civ.App. No. 2007/012 Order of the Court ORDER OF THE COURT AND NOW, consistent with the reasons outlined in a Memorandum Opinion of even date. it is hereby ORDERED that the Nominal Respondent's Motion for Disqualification is DENIED; and it is further ORDERED that Petitioner's Petition fora Writ of Mandamus is DENTED. , Hh SO ORDERED this @_ day of July. 2007, ATTEST: VENETIA HARVEY VELAZQ UEZ Clerk of tha Court _-> Pas Copies to: (with accompanying Opinion) Deputy Clerk Justices of the Panel Judaes of the Superior Court Brenda C. Scales, Esq. Roben L. King. Esq. Supreme Court Law Clerks Venetia Harvey Valazquez. Clerk of the Supreme Court For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS ELBE BRATHWAITE, Respondent. ) IN RE PEOPLE OF THE VIRGIN ISLANDS, _ ) Petitioner, ) S.Ct. Civ.App. No. 2007/012 ) Re: Super.Ct, Crim, No, 479/2006 concerning ) ) HON. LEON A. KENDALL, JUDGE OF THE _ ) SUPERIOR COURT OF THE VIRGIN ) ISLANDS, ) Nominal Respondent, ) ) aud ) ) ) ) ) ) On Appeal from the Superior Court of the Virgin Islands Argued: May 14, 2007 Filed: July 6, 2007 BEFORE: Rhys S. Hodge, Chief Justice; Maria M. Cabret. Associate Justice: Ive Arlington Swan, Associate Justice. APPEARANCES; Brenda C. Scales, Esq. USVI Department of Justice St. Thomas. USVI Attorney for Petitioner, Robert !.. King, Esq. Law Offices of Robert L. King St. Thomas, USVI Anorney for Nominal Respondent Leon A. Kendall, Judge. In re Peaple of the Virgin Islands S.CLCiv. App. No, 2007/012 MEMORANDUM OPINION MEMORANDUM OPINION Per Curiam The Government of the Virgin Islands petitions for relief, including mandamus, enjoining the trial court from holding probable cause hearings for defendants summoned to court for an initial appearance in complaint-initiated criminal prosecutions.’ The Government argues that the filing of a complaint “dispenses with the need for a judicial probable cause examination.” (Mot. for Stay and Pet. for Expedited Writ of Mandamus 2.) The Government asks the Court to direct the trial court to vacate its order requiring the hearings in complaint-initiated prosecutions and to prevent the tnal court from sanctioning govemment attorneys who continue to object to its practice of conducting probable cause examinations in such cases. For reasons which follow. the Government's Petition will be dented. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY In the underlying criminal action. the Government charged Elbe Brathwaite (“Brathwaite”). by complaint, with one count each of misdemeanor assault and battery and disturbing the peace. Brathwaite was served with a summons requiring her to appear in court Lor an initial appearance. Brathwaite appeared as summoned, represented by counsel, and the court announced that it was going to conduct a probable cause examination.> The Government objected, explaining that it had not arranged for the complaining witness to be present and arguing that the hearing was unwarranted because a finding of probable cause had already been made in * The Government characterizes the issue in several different ways. In its Statement of the Issues Presented, the Goverment phrases the issue as whether “a defendant who is summoned to court for an initial appearance in a criminal matter based on a Complaint-initiated prosecution is constitutionally enutled to a probable cause hearing.” (Pet. For Writ of Mandamus 2.) Howevcr, in the body of its brief, the Government asserts that the issue is “~whetber the Trial Court’s interpretation of SUPER. CT. R. 123 is errongous.” (Pet. For Writ of Mandamus 4.) As is explained below. these ure two distinctly differend tosis. * The tial judge actually called the case for “advice of rights and arraignment,” (Tr. 2. 5. Jan. 4. 2007.) but later colloquy shows that both the judge and the prcisecutar understood this to mean that the court would be conduciing a probable cause hearing, (Tr. 6-9. Jan. 4, 2007.) In re People of the Virgin tslands S.Ct.Civ. App. No, 2007/012 MEMORANDUM OPINION issuing the complaint. The court overruled the objection on the ground that Superior Court Rule 123(b)(1) required the probable cause examination. And, because the court had rejected the same objection by the same prosecutor in a different case in the recent past, the trial judge admonished the prosecutor that it found her behavior. “totally contemptuous.” (Tr. 3, Jan. 4, 2007.) The triat judge further threatened to hold Government counsel in contempt if the situation continued in the future. In a written opinion, the court reiterated: “[t]o persist in contending that it is not only winecessary but inappropriate for the Court to engage in an independent probable cause inquiry once the Attomey General has found probable cause is not only improper and impertinent, but disruptive of the Court’s operations and the orderly administration of justice.” People v. Brathwaite, No. 479/2006, slip op. at 6 (V.I. Super. Ct. Feb. 5. 2007). The court ordered the Government to comply with the court's interpretation of the rules, “failing which appropriate sanctions will be mposed....° Je. H. DISCLSSION A. The Nominal Respondent’s Motion for Disqualification. We first address a motion by the nominal respondent to disqualify the three Justices of this Court on the ground that each had previously sat as a judge on the trial court and ruled on the issue of whether Rule 123 (b)(1) of the Superior Court Rules required a trial court to conduct a probable cause inquiry at the initial appearance. The nominal respondent asserts that this created an ‘Srreconcilable conflict . . . necessitating that [they] defer to the rule making function of the Superior Court.” (Resp, Br. !1-12.) In making this assertion. the nominal respondent cited generally to V.L. CODE ANN. tit. 4. $ 284, but did not explain how or why the statute required recusal in this case. Moreover, at oral argument. the nominal respondent conceded that he could cite to no authority which required recusal. Inve People of the Virgin tslands S.Ct.Civ.App. No. 2007/012 MEMORANDUM OPINION court for an initial appearance. Likewisc. Superior Court Rule 122 (d) (2),? which provides a remedy for a defective complaint. unambiguously contemplates that the court will conduct a probable cause inquiry at the initial appearance. even when the prosecution is initiated by a complaint and summons. As for the types of evidence a court can consider in making a probable cause finding, the rule lists three sources: (1) the comiplaint; (2) the arresting officer; and (3) any other witnesses to the crime.” /d, By using both the conjunctive “and” and disjunctive “or”, the language allows the judge to use only one of the listed sources of evidence, some of the sources, or all of the sources. See generally 73 Am. Jur. 2d Statutes § 156 (2007) (explaining general meaning of “and’ and “or” in statutes). Likewise. by permitting the court to base its probable cause determination in whole or in part on hearsay evidence, the rule vests the judge with broad discretion to consider numerous sources of evidence that would otherwise be inadmissible. See 5 VLC, § 932 (providing that hearsay is generally inadmissible), We recognize that the latitude given to trial courts in making probable cause determinations may occasionally inconvenience prosecutors or witnesses who may be unprepared for an examination, But these inconveniences do not outweigh the constitutional right of an accused to a fair and reliable determination of probable cause. The Hexibility inherent in Rule [23 allows trial courts to adequately deal with an almost endless array of circumstances that may be present at the initial appearance, such as those in which probable cause is plainly evident from the complaint, * Superior Court Rule 122 (d) (2) provides: “If during the preliminary examination of any person amested under a warrant or appearing in response to a summons, it appears Phat the warrant or summons does not properly name or describe the defendant. or attense with which he is charged, or that although not guilty of the offense specified in Ihe warrant or summans there is reasonable ground 10 believe that he is guilty of some other offense, the judge shall not discharge or dismiss the defendant but shall forthwith cause a new complaint to be filed and thereupon issue a new wuarrant or summons.” * Because the issue has not been raised, we will not decide whether the y pes oF evidence listed in the rule is exhaustive or whether the trial court may consider types of evidence not listed. In re People of the Virgin islands S.CLCiv.App. No, 2007/012 MEMORANDUM OPINION and others in which the accused can readily satisfy the judge that he or she ts not the person named in the complaint. See MFiltiams v. Ward, 845 F.2d 374, 393-394 (2d Cir, 1988) (Stewart, J. dissenting) (addressing notes to the (973 Tentative Draft of the American Law Institute’s Model Code of Pre-Arraisnment Procedure that discuss the need for flexibility in the probable cause inquiry). Thus, “[t]here is no single preferred pretrial procedure” and flexibility in shaping such procedures is desirable as long as the procedure used provides a “fair and reliable detennination of probable cause as a condition for any significant pretrial restraint of liberty.” Gerstein, 420 US. at 124, 95 S.Ct. at 868. lor these reasons. the initial appcarance practices of the nominal respondent are not a violation of the pertinent Superior Court Rules. Rather, given the latinide permitted by the rules, the nominal respondent has clearly erred only in concluding that his manner of conducting probable cause detenninations is the sole correct procedure,° It is clear that. depending on the circumstances, a particular judge may require the full panoply of evidence addressed in Rule 123, but another judge may detennine probable cause at the initial hearing based upon the complaint and summons alone. Due process “is flexible and calls for such procedural protection as the particular situation demands.” U.S. v. Delker, 757 F.2d 1390, 1397 (3d Cir, 1985) (quoting Morrisey v. Brewer, 408 U.S. 471. 482, 92 S.Ct. 2593. 2600, 33 L-Ed.2d 484 (1972)), The same may be said of Superior Court Rule 123. Umnder these circumstances, the Government has not met its burden of showing that it is clearly and undisputedly entitled to a writ of mandamus enjoining the trial court judge from holding adversary probable cause hearings under Rule 123 in complaint-initiated prosecutions. * In his opinion below, the trial court judge ruled that die practices of other judges in finding probable cause based solely on a complaint and summons violate the Superior Court Rules and the Constilution and ary, therefore, ‘clearly erroneous.” Avurfryaite, No. 4792006, slip op. at 5 Ia re People of the Virgin Islands 8.Ct.Civ.App. No. 2007/012 MEMORANDUM OPIMION Accordingly, the Goverment’s petition for a writ of mandamus to enjoin such action will be denied. 2. The Trial Court’s Threat of Sanctions We turn next to the question of whether the (Government is entitled to issuance of a writ of mandamus based on the trial judge's threat of contempt sanctions if Government prosecutors continue to object to the trial court's practice of conducting adversary probable cause hearings. Because the Government has not shown that it has no other adequate means to obtain the relief and has also failed to show that it is clearly and indisputably entitled to the writ as it concerns the threat of sanctions, the petition will be denied. As lor the first requirement — that the Goverment has no other adequate means for relief - the law concerming contempt sanctions is clear. The Government can “attain relief.” if and when the situation arises, by standing in contempt. See fn re flat Glass Antitrust Lit, 288 F.3d 83, 91 (3d Cir 2002) (court refused to treat appeal as petition for mandamus and issue writ because appellant could stand in contempt and appeal that ruling) (internal quotation marks and citation omitted). Here, the Govemment is complaining about the mere threat of future contempt sanctions. but has not pointed to any finding by the tial court of actual, punishable contempt, much less a final ruling imposing sanctions. Accordingly, should the Government desire relief, it must await the opportunity. stand in contempt, and appeal from the court’s ruling, See id.; Wecht. 484 F.3d at 219 (scheduling of a contempt hearing was not immediately appealable. but counsel could appeal any adverse {future contempt rulings); 15B Charles Alan Wright & Arthur R. Miller & Edward H. Cooper. Federal Practice and Procedure § 3917 (2d ed. 2007) (discussing the finality requirement lor appealing contempt rulings and recognizing that orders to show cause are not appealable). ln ve Peaple of the Virgin Islands 8.Ct.Civ.App. No. 2007/012 MEMORANDUM OPINION In addition. the Goverment has not shown that it is clearly and indisputably entitled to the wiit. See in re Briscoe. 448 F.3d at 212. (stating burden that petitioner show clear and undisputed right to relief}: /7 re Patenaude. 210 ¥.3d at 141 (stating burden that petitioner show clear and undispuled right to relief); 7 re Chambers Dev, 148 F.3d at 223. The Government’s case for mandamus rests upon its assertion that the trial judge erred in expanding the scope of the probable cause inquiry under Superior Court Rule 123 (b) and ovenuling the prosecutor's objections to this practice. We have alveady detennined. however. that the trial court ts authorized to conduct probable cause inquiries under this rule, and it would be inappropriate to anticipate whether the Government's future conduct in other cases will invoke a contempt order from the court or what the particulars of that order might look like. Accordingly, the circumstances lack sufficient clarity for the Cowt to render any truly meaningful opinion on the merits and would require us to speculate aboul the myriad ways in which the trial court might act upon its threat. This, we will not do. Il. CONCLUSION For the foregoing reasons, the Government's Petition for Mandamus will be denied. The Government has not shown that it is clearly and undisputedly entitled to the writ. The Superior Court Rules plainly grant discretion to a trial judge to limit or expand the scope of probable cause inquiries. In addition. the Government's request for mandamus conceming the trial court's threat of contempt sanctions will be denied. The Government, by standing in contempt, has an adequate means to obtain relief and. in any event, it has not shown that it is clearly and indisputably entitled to the writ, Finally. we find no basis for granting the trial judge's motion to disqualify the Justices from considering this Petition simply because they may have considered a similar issue while previously sitting as judges on the trial court. @ inve People of the Virgin Islands $.C1.Civ.App. No. 2007/012 MEMORANDUM OPINION ATTEST: VENETIA I ARVEY VELAZQUEZ Clerk of url J A. —_—, a Deputy Clerk